While the Independent National Electoral Commission (INEC) was busy in Adamawa State, finalising its preparations for the gubernatorial bye-elections in that state, the Federal High Court in the Federal Capital Territory (FCT) ordered INEC to forget about the election. According to the court, in the eyes of the law, the governor of the state is Mr Bala Ngilari, the former deputy governor. That same day, Ngilari was sworn in as governor, on the basis of the court judgment.

Recall that the Adamawa State House of Assembly had earlier in the year commenced impeachment proceedings against the then Governor Murtala Nyako and the then Deputy Governor Bala James Ngilari. As the proceedings progressed, Ngilari submitted a purported letter of resignation to the House. On the basis of the purported resignation, the House stopped the impeachment proceedings against him; not so the proceedings against the governor who was eventually impeached. With the governor and deputy governor out of the way, the speaker of the House had to step in as acting governor, as provided by the Constitution.

Curiously Ngilari turned round to challenge the authenticity of his own purported resignation, saying it did not follow the constitutional provision. No doubt, by Section 306(5) of the Constitution, a deputy governor’s letter of resignation should be addressed to the governor. That said, Ngilari could only have resigned if he had given the letter of resignation to then Governor Nyako. Failure to do so meant that his purported resignation was a nullity. Therefore, at the time Nyako was impeached, Ngilari remained the deputy governor and ought to have stepped in as the new governor. But that is as far as the literal and simple interpretation of the Constitution goes, which is what the Federal High Court decided on Wednesday October 8 and caused Ngilari to be sworn in as the governor of Adamawa State.

Yet, there is another consideration one expected the judge to avert his mind to but did not. And that is the question of equity. Could a person be allowed to take advantage of his wilful abuse of process or failure to follow the due process? The fact remains that Ngilari, like his principal, Nyako, was facing a legitimate, legal and constitutional process of review of their actions while in office. In his attempt to avoid the certainty of impeachment, Ngilari tendered a ‘resignation’ which the House of Assembly relied upon and excused him from being proceeded against to a conclusion of a possible impeachment. Unless Ngilari pleaded ‘non est factum’ by claiming that the said letter purporting to be a resignation was not issued by him or its issuance was a fraud, done undue duress or coercion etc, he must be taken to have issued it. And in that situation, it is further opined that the court ought to have deduced his intendment, which was to enter a valid resignation, even if he addressed it to the wrong party.

That is what happens in equity where it is said that ‘equity looks to the intent not to the form’. Therefore the court is expected to rely more on the substance rather than the form. See Parkin v Thorold (1852) 16 Beav 59, 66 where it was held that if it is found out that ‘by insisting on the form, the substance will be defeated, they hold it to be inequitable to allow a person to insist on such form and thereby defeat the substance’.  In doing so the court, in the Ngilari case ought to have considered that Ngilari being a lawyer knew or ought to know the seriousness attach to an official letter of resignation issued by him, in his name and addressed to a constitutional authority. On that account also, he ought to have been taken seriously as intending to resign at the time he put in the letter, even where he mistakenly, intentionally or mischievously sent it to the wrong organ of government.

Furthermore, the rules of equity do not aid a party at fault. This has been interpreted over the years to mean that the court cannot aid a person where the aid became necessary as a result of his or her own fault or carelessness or where, as in the present case, it was meant to extricate a party from a circumstance he created.

Effanga, an attorney, writes from Abuja and is reachable at obo.effanga@gmail.com